Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 1424

500.212

The applicant is a genuine applicant for entry and stay as a student because:

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant's circumstances; and

(ii) the applicant's immigration history; and

(iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter; and

(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and

1. In considering whether the applicant satisfies clause 500.212(a) of Schedule 2 of the Regulations (genuine temporary entrant criterion), the Tribunal is to apply Ministerial Direction No. 69 "Assessing the genuine temporary entrant criterion for Student visa and Student Guardian applications" (Direction). The Direction addresses various factors which guide the decision-making process relating to the genuine temporary entrant requirement.

1. The applicant was born in Nepal on 1 December 1981. She first arrived in Australia in April 2009 on a student visa.
2. Between April 2009 and making the subject visa application, the applicant completed, an Advanced Diploma of Management (May 2009 to July 2011), a Bachelor of Business (July 2011 to June 2014), a Masters of Professional Accounting (March 2015 to July 2016), and a Masters of Business Administration (November 2016 to July 2018).
3. On 31 August 2018, the applicant applied to the Department of Home Affairs (as it was then known) for a student (subclass 500) visa (visa application). At that time, the applicant was enrolled in a Diploma of Leadership and Management through the Royal Gurkhas Institute of Technology in Hobart (RGIT), which was to commence on 8 October 2018.
4. In the visa application, the applicant said that she was looking forward to opening her "own business back in Nepal".
5. On 17 October 2018, a delegate of the first respondent (Delegate) refused the Application on the basis that the applicant had not satisfied the genuine temporary entrant criterion (Delegate's Decision).
6. On 5 November 2018, the applicant sought to review the Delegate's Decision in the Tribunal.
7. On 1 July 2019, the applicant commenced a Diploma of Leadership and Management with the Queen Anne Business College. This course was scheduled to finish on 27 December 2020.
8. On 1 April 2020, the Tribunal invited the applicant to provide information to satisfy the Tribunal that she was currently enrolled in a course of study and was a genuine applicant for entry and stay as a student (Request for Information). Such information was required by 15 April 2020.
9. On 9 April 2020, the applicant requested an extension of time to respond to the Request for Information until 27 May 2020, which was granted. On 25 May 2020, the applicant requested a further extension of time to respond to the Request for Information until 30 June 2020, which was also granted.
10. On 28 July 2020, the applicant provided a completed Request for Information in which:

(a) the applicant stated that she had travelled to Nepal on 12 June 2009 for about 12 weeks due to sickness, and on 16 January 2012 to visit her family. She had not otherwise travelled to any other country in the previous ten years;

(b) as to how and why she chose the education provider for the Australian course she was currently studying or proposed to study, the applicant said:

I chose the education provider for Australia since Australian training framework is profoundly perceived far and wide and above all much appreciated in Nepal.

(c) as to whether there are similar courses in her home country or region and her reasons for not undertaking such study there, the applicant said:

Studying in Australia would profit me in various way. The standard of education in Australian institute is very high with well-equipped class and highly experienced educator. I trust which I achieve from here it will be very beneficial for me.

(d) the applicant stated that all of her family lived in Nepal and that she last saw each of them in February 2012. The applicant said that she was in daily telephone contact with her mother.

(e) as to her community ties to Nepal, the applicant said:

Even though I am far from Nepal, I am so connected to each and every thing associated with my home country and I am so attached with all our festivals.

(f) as to her community ties to Australia, the applicant said:

I do not have any ties here except my education and my workplace. I am connected to Australian sentiments via educational achievement and I am thankful for that.

At the completion of the course of study now proposed, my plan is open a business in my home country.

(h) the applicant left blank the section concerned with her property and assets, and likely future remuneration that she expects to receive in Nepal. She denied any concerns about military service commitments or political or civil unrest in her home country.

1. The Request for Information was accompanied by, inter alia, an undated written submission prepared on the applicant's behalf by her registered migration agent (Agent's Submissions) and an undated written statement written by her (Applicant's Statement).
2. The Agent's Submissions said, inter alia:

Regarding circumstances in Australia, she has completed all the courses he has undertaken successfully without any study gap in between. She has complied with student visa condition clauses as well. She has also been researching on the prospects of Accounting firm back in Nepal. She stated that she will be returning to Nepal with more knowledge, skills, experiences and above all the modern approach of doing business which he hopes will be a shift from the traditional approach to the modern approach of doing business1. Mrs. Shrestha has vision of establishing her own accounting firm in Nepal. She is planning to focus on three aspects of accounting, Public Accounting, Tax Accounting and Book Keeping. According to my client, in Nepal many accounting firms deal with basically one aspect which is Auditing and fails to provide other services of accounting. Majority of accounting firms focuses on Auditing while some focuses on taxation too. Currently, there is a trend of starting a accounting firm after completing CA (chartered accountant)2 from India or Nepal but that has hampered the Nepalese economy because these so called accounting firms will only target clients for their needs of Audit and fails to provide overall package of accounting services. Even in this modern society, the companies in Nepal basically handles their accounts and financials including tax and payroll themselves while they only hire CA for auditing. This is not because the companies do not want to, this is because the CA's focus on Auditing only. There are varieties of benefits of the accounting firms such as taxation, bookkeeping, payroll, project management, consulting etc.3 The accounting firms will also provide updated market information as well as forecast future trends that will also help the business to grow.

She is planning to build a reputation for an accounting firm5 in Nepal which will be of international standards. She believes that the new approach of accounting will benefit many business houses in Nepal as they can match the international benchmark of accounting practices. She plans to tackle the above-mentioned points so that she can provide overall accounting package to any business whether Nepal based or foreign one which wants to invest in Nepal. As she is intending to start a business and make it a success, she requires several additional traits and skills which her previous qualifications could not provide. The most important qualities of all, leadership was lacking which was evident from her lack of confidence as she told me, she gets afraid to be in front of mass or talk to people. She is a determined person but lacks the ability to lead a business which is necessary to contribute to the overall economy of Nepal. This is also the reason for her to undertake this qualification before heading back home.

1. Inter alia, the Applicant's Statement said of the Diploma of Leadership and Management:

This program is ideal for one who is starting their own business like myself as it provides with hands-on training for dealing with real work business problems. With this MPA degree I can further my knowledge in major fields such as applied finance, Accounting and marketing skill along with general field. All these three components can be used if I have a good leadership skill. As if today Nepal has the traditional approach of running organisation as being boss and acting accordingly. Upon completing the course, I will be able to stand as a leader not the boss of the company.

1. On 13 November 2020, the Tribunal invited the applicant to attend a telephone hearing on 8 December 2020 to give evidence and present arguments.
2. On 18 November 2020, the applicant's representative emailed the Tribunal. Inter alia, the email attached a completed "Response to hearing invitation" form in which the applicant stated: "Please regard the documents as well interview".

1. On 8 December 2020, the applicant appeared before the Tribunal by telephone to give evidence and present arguments in her case. The Tribunal affirmed the Delegate's Decision (Decision).
2. The Minister's submissions conveniently summarised the Tribunal's findings, as follows which I adopt:
   1. The Tribunal identified that the issue was whether the applicant was a genuine applicant for entry and stay as a student in order to meet the criteria of cl 500.212 of Schedule 2 to the Regulations (CB 171 [6]-[7]).
   2. The Tribunal noted the inconsistency between the representative's written submissions that the applicant intended to start an accountancy firm when she returned to Nepal and her oral evidence to the Tribunal that she planned to set up a clothing business (CB 172 [12], CB 174 [22]). It outlined that the applicant had spent 11 and a half years living in Australia on various student visas and studying many different subjects and opined that was "quite a period of time" (CB 172 [13]).
   3. The Tribunal did not find the applicant's evidence about her reasons for requiring an Advanced Diploma of Leadership and Management to be persuasive or compelling (CB 176 [36]). In its view, the applicant did not have much, if any, insight into what would be required to operate a clothing business. It recorded the applicant's evidence that she had plans to run a clothing shop since childhood and noted she must have told her representative something different, given the submission said her plans were to open an accountancy business. It also found that she had never worked in the clothing business in Nepal or Australia ([CB 176 37]).
   4. While the Tribunal accepted that the applicant had regular contact with her two sisters and her mother in Nepal, it found it surprising that the last time she returned to Nepal was 2012 and none of her family had visited her. It did not accept that she currently had close connections to her home country (CB 176 [38]).
   5. As to the extent of the applicant's personal ties in Australia, the Tribunal found that she was very connected to her husband in Australia. It was not satisfied that her circumstances in Nepal would serve as a significant incentive to return. Rather, it considered her economic circumstances in Australia presented as a significant incentive to remain here (CB 176 [39]).
   6. In the Tribunal's view, based on the amount of time the applicant had spent in Australia and her evidence as to why she wished to study her proposed course, there was evidence that the student visa program was being used to circumvent the intentions of the migration program. Accordingly, it found that the visa was being used to maintain ongoing residence in Australia (CB 176-177 [40]).
   7. The Tribunal did not consider the course the applicant was currently studying to be consistent with her level of education, noting the applicant was a very educated person (CB 177 [41]), having already completed a Bachelor of Business, Master of Professional Accounting and Master of Business Administration (CB 173 [17]). It was not satisfied the course would assist her to obtain employment or improve employment prospects when she returned to Nepal and was not satisfied of the relevance to her proposed future employment (CB 177 [41]). Overall, its assessment of the evidence was that the applicant did not intend to stay in Australia temporarily (CB 177 [42]).
   8. Accordingly, the Tribunal found the applicant was not a genuine applicant for entry and stay as a student as required by cl 500.212 and affirmed the delegate's decision. It followed that the second applicant did not meet cl 500.311 (CB 177 [43]).

1. On 6 June 2025, the applicant filed an amended application for judicial review in this Court alleging two Grounds, which I will consider in turn.

*** The Second Respondent made jurisdictional error by making legal error as to the construction of Clause 500.212(a) of the Migration Act 1958.**

Particulars

a) The AAT found that the course which the Applicant proposed to undertake would not assist her when she went home.

b) The finding in (a) involved a finding that it was the intention of the Applicant to return home.

c) Evidence that the student visa program was being used to get around the intentions of the migration program or being used to maintain ongoing residence were consistent with an intention to remain in Australia temporarily albeit with an extended stay in Australia before departure.

(a) identified that the issue raised by clause 500.212(a) is confined to the applicant's genuine intention as to their length of stay: Eros v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 per Allsop CJ at [12]-[13] (Eros), applying Saini v Minister for Immigration and Border Protection [2016] FCA 858; 245 FCR 238 per Logan J.

(b) referred to paragraphs 40 to 42 of the Decision, wherein the Tribunal:

(i) found that the student visa program was being used to get around the intentions of the migration program and to maintain ongoing residence in Australia;

(ii) was not satisfied that the proposed course of study would assist the applicant to obtain employment or improve her employment prospects "when" she "go[es] home"; and

(iii) came to the overall assessment that the applicant did not intend to stay in Australia temporarily.

(c) referred to the Direction "at [12]" (which I take to mean at clause 11 as the submission refers to the applicant's potential circumstances in Australia) and said "these are only factors to consider in relation to the applicant's potential circumstances in Australia which is itself simply a factor to consider in relation to whether the applicant intends to stay in Australia temporarily" and "the most that can be said of the findings is that the [Tribunal] found that the applicant was prolonging her stay in Australia by doing unnecessary courses, which would be of no real use to her when she returns home. The most significant part of this is that the [Tribunal] was accepting that she would return home."

1. In his oral submissions, counsel for the applicant said that the Tribunal made an error of law at paragraph 7 of the Decision, wherein it said:

On the law - something briefly about the law. I acknowledge the law and regulations and in particular assessing if you are a genuine temporary entrant for a student visa. Clause 500.212 of the Migration Regulations and also a legislative instrument called "Ministerial Direction 69" titled "Assessing the genuine temporary entrant criterion for student visa and student guardian applications". Together, they tell me I must assess if you intend to [genuinely] stay in Australia temporarily as a student, if you intend to comply with the visa conditions and whether you are a genuine applicant for entry and stay as a student because of any other relevant matter.

(Emphasis added)

1. The applicant's counsel submitted that the words "as a student", which belong in the chapeau of clause 500.212, ought not have been added to the words "genuinely stay in Australia temporarily" because the only matter to which clause 500.212(a) is concerned is whether the applicant intended to stay in Australia temporarily simpliciter, not whether she intended to stay "as a student". As I understood the submission, counsel for the applicant was identifying that the Tribunal had erroneously conflated the chapeau with the subject of subclause (a) and thus applied the wrong test.
2. The applicant's counsel submitted that the statement in paragraph 41 of the Decision being "when you go home" is a finding that the applicant intended to go home and so remain temporarily in Australia. He said that the Tribunal was entitled to have regard to the value of the course of study to the applicant's future, however, having found that the applicant would "go home", necessarily also found that the applicant genuinely intended to remain in Australia temporarily thus satisfying the genuine temporary entrant criterion.
3. By reference to paragraph 22 of the Minister's written submissions, the applicant's counsel distinguished this matter from Beejadhur v Minister for Immigration & Anor [2020] FCCA 2238 per Judge Kendall at [96] on the basis that his Honour was not confronted with a statement by the Tribunal that the applicant would be leaving Australia.
4. The applicant's counsel accepted that the Decision is to be read beneficially, and not with an eye attuned to error. However, that does not mean that the plain words of "when you go home" do not mean what they say. He added that "if the Tribunal was in any doubt about whether the applicant intended to return home, it would have said so". He said that, in this case, the Tribunal has erroneously looked at matters in the Direction as decisive factors rather than as matters to consider.
5. The Minister's written submissions were relevantly:
   1. This construction of the Tribunal's reasons is misguided and reads the Tribunal's reasons, impermissibly, narrowly and with an eye attuned to error. At paragraph [41], the Tribunal was dealing with the value of the course to the applicant's future, which was relevant to whether the applicant was a genuine applicant for entry and stay as a student. The Tribunal evaluated the applicant's evidence regarding the value of the course to her asserted future plans and reasoned that it was (i) inconsistent with her level of education; and (ii) not relevant to her claimed business plans (which it was also sceptical about given the inconsistency in the evidence from her and her agent about what those plans were, as well as the lack of detail about those plans (CB 176 [37])). The finding at [41] must also be considered in the immediately preceding context of paragraph [40] where the Tribunal found that the applicant was using the student visa program to maintain residence. It must also be read in the context of paragraph [42], where the Tribunal expressly indicated it was not persuaded as to the 'genuineness' of her future plans (i.e. her claim of opening a business). Fairly read, at [41] the Tribunal was not accepting that the applicant had an intention to return to her home country in line with her claimed plans of opening a business. Rather, she was, consistent with its finding, using the student visa program to maintain residence ([40]) and did not actually have "genuine plans" about how she would use the course ([42]), rejecting the claimed value of the course to her asserted future intentions (CB 176 [37]; [40]; [41]).
   2. As to the applicants' reference to Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 at AS [8], no error of the kind found by the Federal Court in Eros error arises in this matter. Unlike in Eros, the Tribunal in the present matter made no finding that the applicant intended to stay for a "defined, relatively short period". Whilst the Tribunal recorded that the applicant's proposed further course was due to end on 14 August 2022 (CB 171 [5]), it did not find that she only intended to remain in Australia for that period of time (cf Eros at [20]-[21]). Instead, the Tribunal in the present matter concluded, unequivocally, that it was satisfied that the "s_tudent visa [was] being used to maintain ongoing residence in Australia"_ (CB 176-177 [40]). A finding that the applicant was "maintaining ongoing residence" is a clear finding that the applicant did not intend to stay in Australia temporarily: Beejadhur v Minister for Immigration & Anor [2020] FCCA 2238 at [97]; Wu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 797 at [44].
6. In his oral submissions, the Minister's legal representative agreed that clause 500.212(a) is limited to the applicant's length of stay in Australia. However, paragraph 7 of the Decision records the Tribunal's description of its overall task pursuant to clause 500.212, which requires consideration of whether the applicant is a genuine applicant for entry and stay "as a student". The inclusion of the words "as a student" after "[genuinely] stay in Australia temporarily" thus discloses no error.
7. The Minister's legal representative submitted that Ground One turns on the word "when" in paragraph 41 of the Decision, specifically whether that records an acceptance by the Tribunal that the applicant would return to Nepal at some point and was thus "in Australia temporarily". He submitted that the sentence should be read in the context of a hypothetical exercise. That is, the Tribunal was assessing the factors required by the Direction as part of its overall assessment of whether the applicant intended genuinely to stay in Australia temporarily. In the last sentence of paragraph 42 of the Decision, the Tribunal concluded that it was not satisfied that this was so.
8. The Minister's legal representative submitted that the conclusion at paragraph 42 of the Decision completed the dispositive task, and paragraph 41 cannot be read in isolation. The applicant has not pointed to any part of the Decision that supports a dispositive conclusion as to "when" the applicant will go home. This is contrasted with the balance of findings that the applicant was using the visa program to maintain residence, that the course of study was not linked to any discernible career plans regarding a clothing business. If the Tribunal had found that the applicant intended to stay in Australia temporarily, such finding would be incompatible with its conclusion in paragraph 42.
9. The Minister's legal representative distinguished this matter from Eros. Whereas in Eros at paragraph 21, Allsop CJ identified that there was an express finding that the applicant intended to remain in Australia for two years, which was "temporary" on any view, in this case, the Tribunal did not make a finding as to the duration of the applicant's stay.

1. I do not agree with the applicant's contention that the Decision lacks clarity, is difficult to follow or "meanders". The Decision was delivered orally in an administrative jurisdiction. The reasons of such a body "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272.
2. At paragraphs 6 and 7 of the Decision, the Tribunal correctly identified the dispositive issue, and the applicable legislative framework, including the Direction. As demonstrated by paragraph 6, the Tribunal identified that its task was to determine whether the applicant was a genuine applicant for entry and stay in Australia. That clause was expressed in paragraph 7 by reference to three elements, namely:

(a) "...if you intend to [genuinely] stay in Australia temporarily as a student" (first element);

(b) "If you intend to comply with the visa conditions" (second element); and

(c) "...whether you are a genuine applicant for entry and stay as a student because of any other relevant matters" (third element).

1. The first element ties the words of clause 500.212(a) to the chapeau, the second element refers only to clause 500.212(b), and the third element is the full expression of the chapeau and sub-clause (c). While not a literal recitation of clause 500.212, paragraph 7 distils subparagraphs (a), (b) and (c) by reference to the chapeau. Further, the ultimate issue was clearly expressed at paragraph 6 of the Decision and reiterated at paragraph 43. I am satisfied that the Tribunal was cognisant of, and applied the correct legislative framework to, the dispositive issue.
2. The applicant's contention that the Tribunal did not specifically refer to the terms of the Direction is misconceived. There is no need for the Tribunal to formulaically or laboriously set out each matter in the Direction: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; [2020] 274 FCR 646 at [106] per Logan, Derrington and Thawley JJ. In any event, paragraph 8 of the Decision recognisably encapsulates the principal elements of the Direction.
3. The substance of Ground One is whether the Tribunal found, at paragraph 41, that the applicant would go home, such as to render illogical the conclusion that she did not meet the genuine temporary entrant criterion.
4. In approaching Ground One, I need firstly to determine whether the Tribunal found that the applicant would go home. If the answer to that question is in the affirmative, then I will turn to whether that ought to have logically resulted in a finding that she genuinely intended to stay in Australia temporarily. It is appropriate that I traverse the Decision and place the statement located in paragraph 41 into context and identify the evidentiary or logical foundation, if any, for the interpretation advanced by the applicant.
5. The matters at paragraph 9 related to the applicant's familial relationships in Nepal, financial position, marital status, and study history. Paragraph 30 of the Decision addresses the applicant's financial position and property interests in Nepal and Australia. These matters engaged with clauses 9(b), 9(c), 11(a) and 11(d) of the Direction.
6. Paragraphs 10 and 11 identify the Applicant's Submission and the Agent's Submission. At paragraphs 12 and 22, the Tribunal identified the difference between the representation in the Agent's Submission concerning an accountancy business, the applicant's representation in the Request for Information to open "a business", and the applicant's oral evidence about operating a clothing business.
7. Paragraphs 13, 14, 21, 25 and 26 of the Decision variously address the length of time that the applicant had been in Australia and the dates and duration of the applicant's visits to Nepal whereby the last visit was nine years prior; the fact that the applicant's family had not travelled to Australia to visit her; and the contact the applicant had with her family. These were all matters that related to the extent of the applicant's ties to her home country and whether such ties would serve as a significant incentive for her to return. The applicant did not challenge these findings and, even if I am wrong about that, I am satisfied that it was open to the Tribunal to find that the duration of the applicant's length of stay in Australia was "quite a period of time", to not accept that the applicant's ties with her family were very significant, and to find it very difficult to accept that the applicant did not have time to return to Nepal to visit her family especially when there was a period of twelve months when the applicant was not studying. These matters engaged clauses 9(b) and (c) and 11(a) to (c) of the Direction.
8. The applicant's oral evidence as to her community, family and employment ties to Australia were described in paragraph 31 of the Decision. These matters engaged with clause 11(a) of the Direction.
9. At paragraphs 16 to 20 and 29 of the Decision, the Tribunal traversed the applicant's study and enrolment history, the reasons that the applicant chose to study in Australia rather than in Nepal, and the applicant's employment history. These matters engaged with clause 11(a) and 11(e) of the Direction.
10. The Tribunal accepted the applicant's evidence about civil or political unrest and military commitments at paragraph 23 of the Decision. These matters engaged with clause 9(d) and (e) of the Direction.
11. The value of the course to the applicant's future, being the subject of clause 12 of the Direction, was considered in paragraphs 32 to 37 of the Decision. The first sentence of paragraph 32 uses the words "when you return to your home country". At paragraph 32, those words are in the context of "your plans for your future on your return to Nepal because you say this is why you have studied and are studying the courses that you have, to help you in your future when you return to your home country".[1] That is, the origin of the words "when you go home" in paragraph 32 was the applicant's representation to the Tribunal as to the value of the course to her and that she is a genuine temporary entrant. It is not the Tribunal's finding that the applicant would return home, nor does the applicant advance any contention in these judicial review proceedings to that effect, noting that the focus of her submission are the words in paragraph 41 of the Decision.
12. Also within paragraph 32, the Tribunal said "I accept it is still over a year or so until you are due to return"[2] (noting the course was to conclude in August 2022), but I would anticipate, having studied for so many years now, such an array of courses, that you would have some clear ideas in mind as to what you are going to do." In my view, in its context, "due to return" means the time that the applicant would conclude her course and ought to, should, or is supposed to return home, not that the applicant genuinely intends to, or will, return at that time (cf Eros). Again, the applicant made no submission about these words in the context of her case about the finding she contends was made at paragraph 41.
13. As to paragraphs 33 to 37 of the Decision:

(a) I am satisfied that the Tribunal's scepticism about the substance of the applicant's future plans was reasonable and intelligible in circumstances where the applicant had been studying for nine years, she gave limited answers to questions about the proposed business, and whose research was based on Google searches.

(b) The Tribunal said that it "reinforced" to the applicant that she had been studying for nine years. The use of the word "reinforced" indicates that the Tribunal placed weight on the applicant's length of stay.

(c) The Tribunal was unpersuaded by the applicant's explanations for undertaking the current course of study. I am satisfied that this was reasonable in circumstances where the applicant's evidence was essentially meaningless, i.e. that "Leadership is about leaders and to lead people" and that her reason for needing to study Leadership and Management was "well, I need those studies".

1. Having traversed the evidence, the Tribunal synthesised its consideration at paragraphs 38 to 42 of the Decision. The Tribunal did not accept that the applicant had ties to her home country but was also "very connected" to her husband in Australia. The Tribunal found that the economic circumstances in Nepal and Australia were such that Australia presented the applicant with a significant incentive to remain. These findings were open on the evidence.
2. A fair reading of paragraph 40 of the Decision demonstrates that the Tribunal was of the view that the student visa program was being used to circumvent the intentions of the migration program and the student visa was being used to maintain ongoing residence based on:

(a) the length of time that the applicant had been in Australia; and

(b) the unpersuasive evidence as to why the applicant wished to study the Advanced Diploma of Leadership and Management.

1. I pause to note that the elements of paragraph 40 were the subject of an exchange with the legal representatives at the hearing. I asked whether the length of time (A) and the evidence about why the applicant wished to study (B) supported "that the student visa program is being used to get around the intentions of the migration program" (C), and that C and the penultimate sentence of paragraph 40 (D) were separate but related considerations. The applicant's counsel agreed with this analysis. The Minister's legal representative preferred a reading that A, B and C supported the finding at D. I prefer the view that A and B support each of C and D because C engaged clause 11(b) of the Direction and D engaged clause 11(c).
2. Paragraph 41 of the Decision developed the reasoning relating to the value of the course of study to the applicant's plans. A contextualised reading of the words "when you go home" link to the same words which are found at paragraph 32 and derive from the applicant's representation about the value of the course to her and that she is a genuine temporary entrant. The words are not, in my view, a reflection of the Tribunal finding that the applicant genuinely intended to return to her home country.
3. I acknowledge the applicant's submission that "words mean what they say". With respect, words take their literal meaning both from the dictionary and their practical meaning from the context in which they are used. In my view, the applicant's reading of the words "when you go home" invites a decontextualization of those words from the totality of the reasoning to promote an artificial conclusion without an evidentiary foundation.
4. If more is needed, it is obvious from the last sentence of paragraph 42 and the totality of paragraph 43 that the Tribunal:

(a) having weighed the evidence, made findings that were open to it; and

(b) having had regard to the factors in the Direction, found that the applicant did not satisfy the genuine temporary entrant criterion.

1. For the reasons given at paragraphs 38 to 58 of these Reasons, I find that the Tribunal did not err as contended by Ground One.
2. I need go on to not consider whether a finding that the applicant will go home necessarily means that she satisfied clause 500.212(a) of the Regulations.
3. Ground One fails.

The Second Respondent made jurisdictional error by treating a submission from a Migration Agent as evidence which was inconsistent with the oral evidence of the Applicant and supporting the inference that the Applicant must have told the Agent something different to what she had sworn in evidence before the AAT.

1. The applicant's written submissions were to the effect that:

(a) The Tribunal was not entitled to treat the Agent's Submission concerning the applicant's intention to open an accountancy business in Nepal (see paragraph [23] of these Reasons and CB106 to 107) as "a basis for a finding of inconsistency" with the applicant's oral evidence at the hearing, being that she intended to open a clothing business (per paragraph 22 of the Tribunal's Decision) in circumstances where that applicant had "in answer to the [Tribunal's] request for information given a general answer about opening a business in Nepal which was not limited to an accountancy business. Indeed, that statement did not even mention an accountancy business."

(b) While the Tribunal is not bound by the rules of evidence, it must act "rationally and fairly", such that a submission which "goes beyond or attempts to expand upon the actual evidence" is of "no evidentiary weight" and "should be disregarded".

(c) At paragraph 37 of its Decision, the Tribunal treated a question about business plans as a "gotcha question" and unfairly inferred that the applicant "must have told her representative something that was inconsistent with her evidence" ("impugned inference") when submissions are about the evidence, not the provision of evidence itself.

1. In his oral submissions, counsel for the applicant clarified that Ground Two relates to paragraphs 22 and 37 of the Decision, which read:
   1. Now, there is a question at question 26 [of the invitation to provide information) which says, "Please give details of your plans including your employment plans at the completion of your course of study. Please include details as to how these courses relate to your future plans". There as one sentence which you wrote; "At the completion of the course of study now proposed, my plan is to open a business in my home country." You did not provide any detail at all about what you had in mind, but again I note that your representative's submissions indicate that you were planning to set up an accountancy business. That is not consistent with what you have told me today.

[...]

1. My impression of you was, when I pursued those questions about your business plans, you were giving responses on the run, so to speak. In fact, I asked you what you would need employees for, and you told me that you would need front line staff to help you. It was clear to me that you really did not have very much, if any, insight into what would be required to operate a clothing business. You told me that you think you believe your husband will help you also in your business. You told me that you had had this idea about running a clothing shop from childhood. Well, it would seem that you must have told your representative something different because in his submissions he said your plan was to run an accountancy business - completely different. You have never worked in the clothing business in Nepal to gain an insight and neither have you worked in the clothing business in Australia either.

1. Counsel for the applicant submitted that there is a clear distinction between evidence and submissions. He submitted that the impugned inference was "unreasonable without more". Counsel submitted that, at its highest, all that could be said was that there was a concern that the submission was different from the evidence. However, the Tribunal was not entitled to conclude that the applicant "must have" told the representative something different because this affected her credibility. Counsel submitted that there is a difference between a "legitimate line of enquiry" and the Tribunal "reaching an adverse conclusion" without raising that issue with the applicant.
2. The Minister's written submissions were to the effect that:

(a) The Tribunal's reasoning did not turn on the inconsistency between the oral evidence and the Agent's Submission, but rather that the applicant was unable to provide a persuasive explanation for why her current course was of value to her future.

(b) It was open to the Tribunal to consider that the Agent's Submission was inconsistent with the applicant's oral evidence, noting that the Agent's Submission about opening an accounting business accorded with the fact that the applicant had accounting qualifications.

(c) It was not irrational to give weight to the Agent's Submission against the "actual evidence". At its highest, the applicant's submission about disregarding the Agent's Submission invites merits review by suggesting that weight should have been given to certain claims and inviting the court to disagree with the Tribunal's reasons.

(d) It was open to the Tribunal to infer that the applicant told her agent something different to that which she said in her oral evidence given the Agent's Submissions were prepared on her instructions.

(e) The Tribunal did not treat the applicant's answers to questions about the applicant's future plans as a "gotcha question". Instead, it sought to test her future plans, which was relevant to the issue of whether she satisfied the genuine temporary entrant criterion. The Minister referred to the assertion in the Applicant's Statement that she wanted to start her own business, noting that it was reasonable for the Tribunal to expect that the applicant would be able to give evidence about the nature of the business and how the current course of study was relevant to those plans.

1. In his oral submissions, the Minister's legal representative said that the impugned inference was a stand-alone observation which was self-evidently correct. Further, the Tribunal proceeded on the basis that the applicant intended to operate a clothing business, as seen by paragraphs 32 to 37 of the Decision.
2. The Minister's legal representative submitted that, even if the Tribunal erred in its approach, the error was not material. The impugned inference was a benign observation and did not weigh in the assessment of the criteria, nor was it the basis of an adverse credibility finding.

1. At the time of the Decision, section 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provided:

33 Procedure of Tribunal

(1) In a proceeding before the Tribunal:

(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

1. The applicant's counsel accepted that the Tribunal is not bound by the "rules of evidence". So much is obvious from s 33(1)(c) of the AAT Act. However, the procedures of the Tribunal are more flexible than that, as demonstrated by the text of s 33(1)(b) and the complete expression of subparagraph (c), namely that it "may inform itself of any matter in such manner as it thinks appropriate." As identified by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 635, when construing s 420 of the Act, the then Refugee Review Tribunal was to "operate as an administrative body with flexible procedures and not as a body with technical rules" and was to "act according to substantial justice and the merits of the case".
2. The concept of substantial justice is far from new. In R v War Pensions Entitlement Appeal Tribunal ex parte Bott (1933) 50 CLR 228, Evatt J identified that, notwithstanding that the relevant tribunal was not bound by the rules of evidence, this did not mean that "all rules of evidence may be ignored as if of no account." His Honour said at 256 that the common law rules of evidence "represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth [...]." In other words, although rules of evidence do not bind, every attempt must be made to administer "substantial justice". In the same case, the plurality (Rich, Starke, Dixon and McTeirnan JJ) at 249 emphasised that the tribunal was the "master of its own procedure" and was "under no obligation to follow wholly or in any special respects the procedure of a Court of law", its duty being to "not violate any substantial requirement of justice".
3. In Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 492-3, Brennan J (as his Honour then was) observed that "the majority judgments in Bott's case show that the tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not." See also Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [97] per Flick and Perry JJ.
4. The applicant impresses on me that, even though the Tribunal was not bound by the rules of evidence, it was nevertheless required to act rationally and fairly and could not expand the evidence to include matters which were merely submissions by the applicant's representative. Instead, the submission should have been given no weight and disregarded.
5. Firstly, I do not accept the latter part of this submission. Weight is a matter for the Tribunal: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ.
6. Secondly, the rules of evidence concern admissibility. No issue of admissibility arose at the hearing before the Tribunal. The Agent's Submission was provided by the applicant in support of her own case and received by the Tribunal as such. In her "Response to hearing information" document the applicant requested that the Tribunal "Please regard the documents as well interview". "The documents" necessarily meant the documents that she or her representative had provided to the Tribunal including the Agent's Submission. Paragraph 32 of the Decision demonstrates that the Tribunal gave the applicant an opportunity to address the inconsistency between the oral evidence and the proposition in the Agent's Submission that she wished to start an accountancy firm, consistent with its duty to afford procedural fairness.
7. Thirdly, while there is a difference between evidence of a fact and submissions which synthesise the facts and apply them to the legal framework, this leads to the technicality of approach that the Tribunal's processes are intended to avoid, bearing in mind that documents such as the Request for Information and statements and submissions relied on by applicants in such proceedings are a blend of factual assertions and explanatory contentions.
8. In circumstances where the Tribunal was entitled to inform itself on any matter in a manner it thought appropriate, the Agent's Submission was placed before the Tribunal by the applicant in support of her own case, and the applicant was afforded an opportunity to address the inconsistency in the material before the Tribunal, I find that it was open to the Tribunal to receive the information contained in the Agent's Submission and no issue of substantial injustice arises.
9. Next, I agree with the Minister's submission that the Tribunal's finding that the oral evidence and the part of the Agent's Submission about the accountancy firm were inconsistent is no more than a self-evident statement. The impugned inference that the applicant "must have" told her representative something different to her oral evidence was open to the Tribunal in circumstances where the applicant instructed the representative at the time that the Agent's Submission was provided to the Tribunal. The Tribunal effectively made an unstated assumption that the agent acted on the instructions of his client when preparing the Submission, which I am satisfied was also reasonable, if not axiomatic.
10. Even if I am wrong about that, nothing turns on the observation of inconsistency between the applicant's oral evidence about operating a clothing business and the Agent's Submission about an accountancy firm. Paragraphs 33, 34 and 37 of the Decision demonstrate that the Tribunal turned its mind to the value of the course of study to the applicant's plan to open a clothing business. Paragraph 40 refers to evidence "as to why you wish to study the Advanced Diploma of Leadership and Management", the answer to which is at paragraph 35 and 36 of the Decision wherein the applicant's oral evidence is cited ("Leadership is about leaders and to lead people") and explored by the Tribunal by reference to the plan to operate a clothing business.
11. The form of the applicant's submission that the Tribunal framed a "gotcha question", being as gracious as I can, might have been expressed with more care. It is both inappropriate and incorrect to assert that the Tribunal treated the applicant's plans at paragraph 37 of its Decision in this way. There is nothing in the Decision that suggests that the Tribunal was sporting with the applicant, as "gotcha" suggests. Rather, it was attending to the task required of it by the Regulations by reference to the Direction by turning its mind to how the proposed course of study would be of value to the applicant's future plans. To observe that the nature of those plans included an inconsistency between the oral evidence and the Agent's Submission was within the remit of that evaluative task. In any event, nothing turned on the reference to starting an accountancy business, for the reasons just given.
12. For the reasons given at paragraphs 68 to 79 of these Reasons, I find that the Tribunal did not err as contended by Ground Two.
13. Ground Two fails.

1. As no jurisdictional error has been demonstrated, I must dismiss the amended application filed 6 June 2025.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw.